Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Hansard source

The Referendum (Machinery Provisions) Amendment Bill 2022 is probably more critical than most people appreciate, because it is the bill that will determine whether or not the referendum we're about to have has integrity. I think Australians expect their referendums to happen in a way that is orthodox, predictable and not subject to the particular whims of the government of the day.

I come to this discussion—and, indeed, will come to the next discussion, when we have the constitutional alteration bill—from two distinctive perspectives. The first is that of someone who was very much at the centre of the last transformative event that this parliament presided over, being the same-sex marriage act. I'm surprised that more people are not talking about some of the important lessons learned from that particular legislative success, and I'll come to that in a moment.

The second, and less commonly known to senators, is that I was very much at the centre of the last constitutional referendum debate that this Senate had, in 2012-13—indeed, Senator Ciccone, I was. That debate concerned the matter of constitutional recognition of local government. Again—it's interesting how history turns—I was on this side of the parliament and was appointed by Senators Bushby, Bernardi, Madigan, Leyonhjelm, Day and McKenzie as the convenor of the parliamentary 'no' committee. Again, I'll come to that in a moment.

When we get to the constitutional alteration bill there will be an opportunity for the Senate to debate the substantive issue of changing the Constitution, but I think it's very important to make this point: it's my modest view that the great bulk of Australians are now ready to have—are now very comfortable with having—a form of constitutional recognition for Indigenous people. That is my honest and informed view. What the parliament will be forced to debate this year is in what form that constitutional recognition will be undertaken and, perhaps, approved by the Australian electorate. So our country has travelled a tremendous distance, and I'm pleased to say that the coalition has played an important role in bringing forward different sorts of ideas about what constitutional recognition of Indigenous people should look like. I think that's a very important point: that we will debate in the near future a particular form of Indigenous recognition. But that, as I said, is a debate for other time.

Let me turn back to the experience of the same-sex marriage debate. I applaud the Prime Minister for being the first Prime Minister to walk in the Sydney Mardi Gras. I'm surprised he did not learn better some of the lessons from the most recent same-sex marriage debate. That debate was greatly aided by the fact that a bill to legislate same-sex marriage was released three months before the first vote in the plebiscite. That gave people great confidence about what the bill would be when we came to debate it in the parliament if the plebiscite was successful. It's not my job to advise the government, but if I were a member of the government my strong advice to it would be this: you create confidence and you build trust when you allow Australians to see the type of bill that they, through their representatives, will be asked to endorse.

It is not true that the parliament will decide the form of a legislated Voice. It's not true. That will be decided by the government, the Greens, Senator Pocock and perhaps Senator Lidia Thorpe. I don't know the extent to which Senator Smith will be invited to participate in that. I don't know the extent to which Senator Bragg will be invited to participate in that. It's a great error of judgement by the government and the Referendum Working Group not—

Excuse me, Senator Pratt. I'm making a very serious and sensible contribution. I know you know that.

So it's very, very strange. It's a great error of judgement by the government and the Referendum Working Group not to bring forward a draft legislative proposal.

The second lesson from the same-sex marriage debate is this. The same-sex marriage bill was not the first marriage bill; it was the last, but it was number 22 of 23. I make that point because it was a work that allowed everyone to bring particular perspectives. Some people gave important ground in order that the parliament could come to a near-unanimous decision.

Unfortunately, what we had here was the Labor Party in opposition adopting a form of recognition, making that its policy, and then suggesting that somehow it had virtues that extended beyond that. This is an election commitment in regard to a form of Indigenous recognition; it has no more virtue than that. And, as I said, we'll get to the merits of that when we talk about the constitutional alteration bill. Those are some important lessons, I think, from the same-sex marriage debate.

When we last debated constitutional reform in this Senate chamber in 2022-23—and I see that Senator McKenzie has now joined me, and Senator McKenzie was very much involved in that—it's worth noting that the referendum mechanics bill passed the Senate; it passed the parliament. The constitutional alteration bill passed the parliament. The 'yes' and 'no' committees were created. Senator Smith—you can see it on Facebook if you wind right back—took down the official 'no' case to the Australian Electoral Commission. And others—I don't know who it was; it might have been Mrs Prentice, a Queensland member of the House of Representatives—took down the official 'yes' case. It was orthodox. There were official 'no' and 'yes' committees. There was a 'yes' case and a 'no' case. It instilled great confidence in people, and there was never a skerrick of doubt about the integrity of that referendum process—until the government decided it would allocate disproportionate funding between the 'yes' and 'no' campaigns.

Anyway, for those who are keen students of history, you might remember; I actually don't remember going to vote in that referendum.

An honourable senator: No. What happened, Dean?

What happened? Leadership change: Prime Minister Gillard was forced out of office; it shifted to Prime Minister Rudd. The referendum was abandoned.

That brings me to my other substantive point. I am genuinely confused why some people have chosen to trust Labor to deliver such an important referendum proposal. Putting the merits of Labor's particular proposal aside for a moment, people, I think, have been foolish to trust Labor on this referendum. Under Labor—after, it would say, a distinguished period of government since Federation and a very, very long history of political participation in our country—just one referendum proposal has been successful. That's just one, in 1946. Not even Gough Whitlam, not even Bob Hawke could bring referendum proposals forward in our country and have them endorsed. The great legends Bob Hawke, Gough Whitlam and Ben Chifley could not even deliver constitutional reform except on one occasion, in 1946. And what is the other salient fact about that referendum proposal, which supporters out there in the community should think very carefully about? It enjoyed just 54 per cent of support. Wow!

If this referendum proposal is successful, I hope it's successful with a thumping majority. I do because I worry what it would mean if the referendum proposal is endorsed with a significantly lesser majority. This brings me to the next issue. As a keen student of constitutional reform—as I said, as someone who has participated in it—we and the government start with those opinion polls perilously low. The record shows with great clarity that support for constitutional referendum proposals in our country diminishes over time. They do not start with low support and get lots of support; they diminish over time. Why are those opinion polls—and opinion polls should be treated with a touch of scepticism—trusted? Again, it is not my job to provide advice to the government, but there has been much already in the government's actions around this referendum that has caused Australians to be suspicious, that has caused Australians to be concerned.

The government was slow to endorse a 'yes' and 'no' pamphlet. How can that possibly be? The 'yes' and 'no' pamphlet is the single means that allows everyone to have the debate framed in a way that is respectful and that sticks to the issues, because it is framed by parliamentarians. No matter the intensity of our contest in chambers like this and the House of Representatives, more often than not, we each conduct ourselves in a way that is generous and gracious and thinks of the country's interests. I'm very confident that the 'no' committee and the 'yes' committee, when they come to write those pamphlets, will do so in an informed, concise and conscientious way. The government was slow to think that that was a suitable way to proceed. The government is confused. The working group is confused. What is it that is actually going to be in that constitutional alteration bill? What is the question that Australians are going to be asked to support? And there is the government out there, saying that somehow everyone else is slow to understand. No, people have been quick to be suspicious because Australians, whatever their political views, are cautious and conservative on constitutional change. That's not me making it up. The history proves that.

And so we have two outstanding issues: 'yes' and 'no' committees and the issue of equal funding. The 'yes' and 'no' committees are very important. Again, I'm not speaking to the government; I'm speaking to the referendum working group. Take more care. Pay more attention. In your opposition to a 'yes' and 'no' pamphlet, in your opposition to 'yes' and 'no' committees, you might just be aiding and abetting the tarnishing of our proud democratic tradition by giving the government the wrong advice. I don't doubt that the advice is sincere. I do not. But it is wrong. There must be 'yes' and 'no' committees. It formalises the debate. It makes parliamentarians—and I hope that it would be chaired by parliamentarians—accountable. When we go to general elections every three years in this country, we don't hold our neighbours accountable. We hold our parliamentarians accountable. So 'yes' and 'no' committees that are comprised of parliamentarians and a pamphlet that is authored by parliamentarians allows Australians to hold parliamentarians accountable. It is unfair and it is wrong that other people might find themselves made accountable for a referendum that is unsuccessful or a referendum that is successful but doesn't enjoy a high enough level of confidence amongst Australians.

Orthodoxy is the way to approach referendums in our country, and, even then, they cannot be guaranteed of success. Getting the mechanics right is very, very important. Paying attention to these things is very, very important. The referendum machinery issue is what voters will see first, and they will quickly come to a judgement about whether or not the referendum mechanism has integrity. I've got to say, the government has started shabbily. The Prime Minister goes to great pains to say that this is not his referendum proposal. When he says that, bells should ring, because if it's not his proposal then who is accountable? If it's not his proposal, whose proposal is it? If it's not his proposal, who is going to have to deal with the disappointment if it's unsuccessful? The Prime Minister must take more ownership, and, thus far, this is off to a very, very bad start. It is bad for our democracy and bad for supporters of this Indigenous recognition proposal.